# Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 (Introduced in Senate) **URL:** \ **Category:** Great Debates\ **Created:** [April 6, 2010, 3:39pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149 "2010-04-06T15:39:40Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 7, 2010, 3:24pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/41 "2010-04-07T15:24:40Z")
> [@Really\_Not\_All\_That\_Bright](#): > > That would not be consistent with “detention without trial”. They won’t have access to counsel because it says they won’t right there in the bill. A “trial” is not a habeas proceeding. And where, exactly, in the bill does it say they are not permitted access to counsel? ---
**Author:** ![Knorf](https://avatars.discourse-cdn.com/v4/letter/k/58956e/32.png) [@Knorf](https://boards.straightdope.com/u/Knorf)\ **Post date:** [April 7, 2010, 3:36pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/42 "2010-04-07T15:36:01Z")
If the Congress needs to pass a law about this now, does that mean that it’s been done illegally for these past nine years? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 7, 2010, 3:39pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/43 "2010-04-07T15:39:46Z")
> [@Knorf](#): > > If the Congress needs to pass a law about this now, does that mean that it’s been done illegally for these past nine years? No. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [April 7, 2010, 3:55pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/44 "2010-04-07T15:55:53Z")
> [@Knorf](#): > > If the Congress needs to pass a law about this now, does that mean that it’s been done illegally for these past nine years? I would say more ad hoc. This act does nothing to help in that regard. In particular, one problem lawyers have is there isn’t one clear definition of who the Gov’t can detain. Judges are all over the place. This act utterly fails to rectify that by including in criteria the phrase “_Such other matters as the President considers appropriate_.” That could be anyone. That’s back to square one again. Another is how to determine the “end of hostilities.” This act offers no guidance. This issue has to be dealt with at some point. ---
**Author:** ![Ogre](https://avatars.discourse-cdn.com/v4/letter/o/ecb155/32.png) [@Ogre](https://boards.straightdope.com/u/Ogre)\ **Post date:** [April 7, 2010, 3:58pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/45 "2010-04-07T15:58:58Z")
> [@CoolHandCox](#): > > I would say more ad hoc. > > This act does nothing to help in that regard. In particular, one problem lawyers have is there isn’t one clear definition of who the Gov’t can detain. Judges are all over the place. This act utterly fails to rectify that by including in criteria the phrase “_Such other matters as the President considers appropriate_.” That could be anyone. That’s back to square one again. > > Another is how to determine the “end of hostilities.” This act offers no guidance. This issue has to be dealt with at some point. Or just be killed as the naked political posturing it is. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 7, 2010, 4:16pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/46 "2010-04-07T16:16:04Z")
> [@Bricker](#): > > And where, exactly, in the bill does it say they are not permitted access to counsel? Right there: > [@](#): > > (3) INAPPLICABILITY OF CERTAIN STATEMENT AND RIGHTS- A individual who is suspected of being an unprivileged enemy belligerent shall not, during interrogation under this subsection, be provided the statement required by Miranda v. Arizona (384 U.S. 436 (1966)) or otherwise be informed of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 7, 2010, 5:18pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/47 "2010-04-07T17:18:30Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Right there: That’s just says he doesn’t have to be read his “Miranda rights”. It doesn’t say he can’t have access to an attorney. In fact, if anything, it certainly implies that he does. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 7, 2010, 5:21pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/48 "2010-04-07T17:21:05Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Right there: That language says he doesn’t get read his “Miranda” rights, or told he has any. ---
**Author:** ![VinylTurnip](https://avatars.discourse-cdn.com/v4/letter/v/b2d939/32.png) [@VinylTurnip](https://boards.straightdope.com/u/VinylTurnip)\ **Post date:** [April 7, 2010, 5:21pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/49 "2010-04-07T17:21:38Z")
Yeah, he just has to know it instinctively rather than being told. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 7, 2010, 5:22pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/50 "2010-04-07T17:22:47Z")
“… or otherwise be informed of any rights that the individual may \*\*or may not \*\*have to counsel” It’s right there, people. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [April 7, 2010, 5:25pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/51 "2010-04-07T17:25:05Z")
> [@Bricker](#): > > That language says he doesn’t get read his “Miranda” rights, or told he has any. “…or otherwise be informed of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona.” Don’t even _try_ to tell me that if, in the middle of an interrogation, the suspect asks for her/his lawyer, they are just going to stop and give him access to one. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 7, 2010, 5:29pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/52 "2010-04-07T17:29:50Z")
> [@Czarcasm](#): > > “…or otherwise be informed of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona.” > Don’t even _try_ to tell me that if, in the middle of an interrogation, the suspect asks for her/his lawyer, they are just going to stop and give him access to one. The accusation was “They won’t have access to counsel because it says they won’t right there in the bill.”. That is not supported by the language of the bill. If you want to move the goal posts to not having immediate access to an attorney, then you’re probably right. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 7, 2010, 6:01pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/53 "2010-04-07T18:01:11Z")
> [@VinylTurnip](#): > > Yeah, he just has to know it instinctively rather than being told. And yet the Republic survived for nearly two hundred years before Miranda became law. And during that time, people had access to counsel. So we know, for a fact, that merely because people are not told what their rights are, they were still permitted access to counsel. So why is this situation different? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [April 7, 2010, 6:04pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/54 "2010-04-07T18:04:41Z")
> [@Bricker](#): > > So we know, for a fact, that merely because people are not told what their rights are, they were still permitted access to counsel. Long time since I have read _Miranda_, but haven’t courts decided that in order for the right to counsel to be meaningful, the prophylaxis of the warning is required? Hence while the right still exists in the absence of the warning, to the extent it can be invoked, it is not considered a meaningful right? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 7, 2010, 6:14pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/55 "2010-04-07T18:14:15Z")
> [@villa](#): > > Long time since I have read _Miranda_, but haven’t courts decided that in order for the right to counsel to be meaningful, the prophylaxis of the warning is required? Hence while the right still exists in the absence of the warning, to the extent it can be invoked, it is not considered a meaningful right? Prophylaxis? I thought we didn’t torture anymore… 🙂 You want an attorney? Well, here’s your prophylaxis!! :eek: ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 7, 2010, 6:15pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/56 "2010-04-07T18:15:23Z")
> [@villa](#): > > Long time since I have read _Miranda_, but haven’t courts decided that in order for the right to counsel to be meaningful, the prophylaxis of the warning is required? Hence while the right still exists in the absence of the warning, to the extent it can be invoked, it is not considered a meaningful right? As a general principle, you’re correct. But that ruling extends only to the use of the statements made under interrogation against the accused in a subsequent trial. A moment’s thought will make this clear: what is the remedy for failure to wanr a suspect of his Miranda rights? Answer: suppression of the statements made by the suspect. Since this legislation explicitly provides that criminal trials will not occur, the ill that Miranda guards against is simply not present: there is zero chance that his statements will be used against him. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [April 7, 2010, 6:22pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/57 "2010-04-07T18:22:20Z")
Well, I was more concerned about pointing out the possible error in your comparison with pre-_Miranda_ days, to be honest. Here is one I honestly don’t remember the answer to - can an un-_Mirandized_ statement be used as evidence in another person’s trial? I have a vague recollection it can. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 7, 2010, 6:26pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/58 "2010-04-07T18:26:21Z")
> [@villa](#): > > Well, I was more concerned about pointing out the possible error in your comparison with pre-_Miranda_ days, to be honest. > > Here is one I honestly don’t remember the answer to - can an un-_Mirandized_ statement be used as evidence in another person’s trial? I have a vague recollection it can. Yes - one defendant may not vicariously exercise another’s Fifth Amendment rights. There are still the usual hearsay issues to consider, but there’s no Miranda violation. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 7, 2010, 6:39pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/59 "2010-04-07T18:39:30Z")
> [@Bricker](#): > > A “trial” is not a habeas proceeding. > > And where, exactly, in the bill does it say they are not permitted access to counsel? Regarding potential _habeas_ challenges: > [@](#): > > On 20 February 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld this provision of the MCA in a 2–1 decision of the Case Boumediene v. Bush. The Supreme Court let the Circuit Court’s decision stand by refusing to hear the detainees’ appeal. On June 29, 2007, the U.S. Supreme Court reversed its April 2007 decision and agreed to hear the appeals of Guantanamo detainees who are seeking habeas corpus review of their detentions.[16] > > Under the MCA, the law restricts habeas appeals for only those aliens detained as “enemy combatants,” or awaiting such determination. Left unchanged is the provision that, after such determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warrants the determination. If the status is upheld, then their imprisonment is deemed lawful. > > **There is, however, no legal time limit which would force the government to provide a Combatant Status Review Tribunal (CSRT) hearing. Prisoners are legally prohibited from petitioning any court for any reason before a CSRT hearing takes place**. I withdraw the access to counsel thing, since as you note it doesn’t explicitly provide for loss of same. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 7, 2010, 6:59pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/60 "2010-04-07T18:59:16Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Regarding potential _habeas_ challenges: > > I withdraw the access to counsel thing, since as you note it doesn’t explicitly provide for loss of same. OK, so the only thing we’re thrashing out now is how someone might challenge the legality of his detention, yes? While that’s a fair point to raise, it’s one that existed prior to this latest bill, the bill whose introduction spawned the OP. So it doesn’t seem accurate to lay at this bill’s feet the complaint that habeas petitions must be preceded by a CSRT. [Previous page](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149.md?page=2) [Next page](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149.md?page=4)